The duty of the Court to consider the substance of the matter rather than adjudicate on mere technicalities, especially in cases involving tragic circumstances.

Kumar Rajaratnam, J.—The civil revision petitions are taken up with the consent of parties.

2. The petitioner being aggrieved by the order dated 22nd of December, 1999 passed by the First Additional District and Sessions Judge, Bangalore Rural District, Bangalore in Interlocutory Application Nos. III and IV in M.V.C. No. 128/1995, has preferred these revision petitions.

3. The only son of Natarajan and Kanakarangitham died in a road accident. The said parents filed a claim petition against the respondents in M.V.C. No. 128/1995. Unfortunately, while the matter was pending before the Tribunal both the parents died. Consequently the petitioner Girija Gowri the only legal heir filed applications I.As. III and IV to set aside the abatement and to condone the delay in bringing the legal representative of the deceased claim petitioners in Court. There was only a delay of one day. That was rejected, by an order dated 22.12.1999. The order reads as follows:

None present. No application under Order 22, Rule 9, C.P.C. filed, the date of death of petitioner No. 1 is also not given. Hence the application under Order 22, Rule 4, C.P.C. or under Order 22 does not arise. Hence I.A. III and TV rejected. Hence petition abates.

4. Aggrieved by this the only legal heir of the claimants has preferred these revision petitions.

5. The Tribunal did not notice that during the pendency of the matter the father (first petitioner) died. The same was reported to the Court. Thereafter the mother of the petitioner who was the second petitioner proceeded with the case. She also died on 3.8.1999 leaving the petitioner as the only legal heir. In these circumstances the petitioner filed two applications one for setting aside the abatement and the other for condonation of delay if any in filing the legal representative application.

6. Both these applications were rejected by the Trial Court on hyper-technical ground that instead of making the application under Order 22 Rule 9, C.P.C. the application was made under Order 22 Rule 4 of the C.P.C.

7. In a tragic case like this where the only son died in a road accident and when both the claimants during the claim petition have died, it is the duty of the Court to read the prayer in the application and not reject the application since it was not under Order 22 Rule 9, C.P.C. The Court below was also in error in stating that the date of death of the first petitioner was not given. According to the learned Counsel for the petitioner that the first petitioner died during the pendency of the proceedings and the second petitioner (wife) was permitted to continue with the proceedings. This fact was brought to the notice of the Court. Obviously, the Court was aware when the first petitioner had died. Otherwise the Court would not have permitted the second petitioner (wife) to prosecute the matter before the Tribunal.

8. It would not have been improper for the Court to have informed the Advocate to incorporate the correct provision of law. In fact in a case where a young Advocate appears and makes an application for setting aside the abatement and (2) for condonation of delay, it is the duty of the Court to consider the substance of the matter rather than to adjudicate on the mere technicality under which the application was made.

9. The applications clearly indicate that the prayer for setting aside the abatement and for condonation of delay if any and for impleading only legal heir as the petitioner in the claim petition. When the applications clearly indicate the prayer correctly and also indicate that the application was made under Order XXIX. It is surprising that the Court has rejected both the applications and held that the claim petition itself abates.

10. In a similar matter under Order 9 Rule 1, C.P.C., the Supreme Court pronounced in Ram Sumiran and Others Vs. D.D.C. and Others, AIR 1985 SC 606, as follows:

The only ground on which the High Court has dismissed the writ petition is that it has abated as a whole against